Skweit v Speaker of the Greater Taung Local Municipality and Others (2317/07) [2008] ZANWHC 52 (5 December 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: 2317/07

In the matter between:

MPHO EDWARD SKWEIT APPLICANT

and

THE SPEAKER OF THE GREATER

TAUNG LOCAL MUNICIPALITY 1ST RESPONDENT

THE MUNICIPAL MANAGER OF THE

GREATER TAUNG LOCAL MUNICIPAL 2ND RESPONDENT

THE UNITED CHRISTIAN DEMOCRATIC PARTY 3RD RESPONDENT

APPLICATION:

COUNSEL FOR THE APPLICANT : ADV BOTHA

COUNSEL FOR THE 1ST RESPONDENT : DR SENATLE

J U D G E M E N T

Leeuw J:

Introduction:

[1] The Applicant has approached this Court on Review seeking an order in the following terms:

“1 The decision of the Greater Taung Local Municipality taken at its General Meeting on 30 May 2007 to remove the applicant as a member of the Executive Committee of the Greater Taung Local Municipality is hereby reviewed and set aside.

2 The Greater Taung Local Municipality is hereby ordered to re-instate the applicant as a member of the Executive Committee of the Greater Taung Local Municipality with effect from 30 May 2007 on terms and conditions not less favourable than those that pertained to him on the date of his removal.

3 The Greater Taung Local Municipality is hereby ordered to pay the applicant back pay of payments and other emoluments that he would have received had he not been removed as member of the Executive Council on 30 May 2007.

That the first and second respondents as well as the Greater Taung Local Municipality, jointly and severally are hereby ordered to pay the costs of this application.

That such further and/or alternative relief be granted to the applicant as the honourable Court may deem fit.

TAKE NOTICE FURTHER that you are hereby called upon to dispatch, within 15 days of receipt of this Notice of Motion, to the Registrar of the above

honourable Court, the record of the verbatim minutes of the proceedings of the General Council of the Greater Taung Local Municipality at its meeting on 30 May 2007 pertaining to the removal of the applicant from the Executive Committee together with such reasons as you are by law required or desires to give and to notify the applicant that you have done so.”

[2] The application is opposed by the First and Second Respondents (the Respondents). The Third Respondent did not enter appearance in that regard. The First Respondent is cited in her capacity as the Speaker of the Greater Taung Local Municipality (“Municipality”). The Second Respondent filed an opposing affidavit deposed to by Meokgo Matuba, who is the Municipal Manager. She took several preliminary points without responding to the merits of the application. After the enrolment of the matter, and the matter having been postponed several times thereafter, the Second Respondent was granted leave to supplement her answering affidavit, on the merits if any, on or before the 9th September 2008. The application was postponed to the 25th September 2008 for hearing.

[4] At the hearing of this application on the 25th September 2008, it was brought to the Court’s attention that the Second Respondent served an unsigned supplementary answering affidavit on the Applicant on the 1st September 2008 and that the signed and attested supplementary answering affidavit was filed with the Registrar on the 16th September 2008, and that there was no application for condonation for the late filing thereof.

[5] Dr Senatle, who appeared on behalf of the Respondents indicated to the Court that he was given instructions in this matter at a very late stage on the 23rd September 2008 by the Respondents’ attorney, Mr Motlhamme. That he realised that the papers of the Applicant in the Court file were not in order. He had a consultation with a Mr Sithole on the merits of this case and thereafter requested him to convey to Mr Motlhamme his disquiet about the state of the Court file which was not paginated. He phoned Mr Motlhamme on the 24th September 2008, who promised to see him in his chambers. Mr Motlhamme never turned up despite the fact that several messages were left for him. It was only on the morning of the 25th September 2008, that Ms Matebesi of the office of Mr Motlhamme instructed him to apply for the matter to be struck off the roll. The application was opposed by counsel for Applicant, Mr Botha. I refused the application and the matter proceeded unopposed. The Supplementary

Answering Affidavit was not admitted and contents thereof were not taken into account when considering this application.

Background Information

[6] On the 1st March 2006, the Applicant was elected as a Ward Councillor (Councillor) for Ward 12 of the Municipality. He is an Independent

Councillor as he is not affiliated to any political party.

[7] He was a member of the executive committee of the Municipality Council (the Council), having been nominated by the United Christian

Democratic Party (UCDP). The executive committee of nine (9) members comprised of one (1) Independent Democrat, one (1) UCDP member, six (6) African National Congress (ANC) members and the Applicant as an Independent Councillor.

[8] On the 6th December 2006 , at the general meeting of Council, a motion for the removal of the Applicant as an executive member from Council was one of the items on the agenda. The notice read as follows:

“1. Contravention of Structures Act under General Conduct for Councillors, Section 2 (b).

2. Unauthorised disclosure of information, Section 10 (1) and 10 (2) (a) – (b).

3. Interference of administration, Section 11 (a) and 11 (d).”

[9] Applicant alleges that he was not notified about the intention to remove him as an executive member of Council. He however states that on the 6th December 2006, having received the notification for the meeting as well as the agenda, he attended the meeting.

[10] Prior to the discussion of the motion, he was requested by the First Respondent, (the “Speaker”) to leave the house. Despite

protestations raised by him, he was not allowed to participate in the deliberations on this motion. He left the house after making a request that it be placed on record that he was not afforded an opportunity to state his case on the issue.

[11] According to the minutes of this meeting, Resolution 149/2006 was adopted wherein it was decided that: “Permission be granted to institute with immediate effect, a disciplinary hearing against Councillor Skweit.” A further Resolution 150/2006 was adopted in the following terms:

“(a) That Council authorises the speaker to institute an investigation of the facts and circumstances of the allegations levelled against the councillor.

(b) That the councillor be given a reasonable opportunity to reply in writing regarding the allegations.

(c) That the matter be reported in the next council meeting after (a) and (b) have been complied with.”

[12] On the 8th January 2007, a letter was written to the Applicant by the Speaker, inviting the Applicant to a meeting scheduled for the 15th January 2007 with the following items noted in relation to the Applicant, for discussion:

“1. Your behaviour during imbizo week.

2. Disclosure of Council information.

3. A.O.B. (which means “any other business.”)

[13] Applicant intimates that, acting on his attorney’s advise, he attended the meeting of the 15th January 2007 but refused to discuss the issues which related to the subject matter of the Resolutions 149/2006 and 150/2006 respectively.

[14] The minutes of this meeting indicate that the meeting was attended by the Speaker, the Applicant and two other persons namely a Councillor Dora Sejamoholo and her personal assistant Mr Gaolatlhe Mabe who were there as observers.

[15] On the morning of the 12th March 2007, Applicant was informed by the secretary of the Council that a meeting was scheduled for that day in the afternoon. The meeting was about his removal as a member of the executive Council. Applicant attended and when the meeting was adjourned to later that evening, he did not remain in attendance as he had other engagements to attend to.

[16] The minutes of the meeting of the 12th March 2007, indicate that a Resolution 21/2007, was adopted by the Council which reads as follows:

“That the matter be dealt with in the next council meeting as a result of the following Council’s Rules of Order requirements:

1. That the Motion should be delivered at relevance (sic) within seven days before the date of the meeting at which it is intended to be introduced or prior notice of intention to move a motion.

2. That the matter does not appear upon the agenda of the meeting.

Mover: Cllr Kgosieng Seconder : Cllr Montsho

[17] On the 30th May 2007, Applicant had received the agenda for this meeting. The UCDP tabled a motion replacing him on the executive committee with Councillor

Morwalela. Resolution 21/2007 was also on the agenda for discussion.

[18] Applicant was denied the opportunity to participate in the discussion and was asked to leave the meeting. The minutes of this meeting were only filed with the Registrar of this Court and the Applicant’s attorneys respectively on the 16th September 2008.

[19] On the 1st June 2007, the applicant received a letter from the Speaker informing him about the decision of the Council meeting held on the 30th May 2007, which stated that he was removed as a member of the executive council in accordance with section 53 (1) of the Local Government: Municipal Structures Act No 117 of 1998 (“the Municipal Structures Act”), with effect from the 30th May 2007 and that he will remain an ordinary councillor of the municipality as from that date.

[20] The Applicant caused a letter dated 6 June 2007 to be written to the Speaker, requesting her to furnish him with the reasons within 5 days of receipt of the letter, for the Council’s

decision to remove him from the executive committee.

[21] In response, a letter dated 11 June 2007 was written by one Mokgadi Kgatla, in her capacity as Municipal Manager, stating that they were in the “process of gathering documentary information” regarding his expulsion and promised to revert back to him at their earliest convenience. In the meantime, on the 6th June 2007 Mokgadi Kgatla wrote a letter to the Acting Chief Financial Officer of the Municipality, advising about the fact that Applicant was an ordinary member of Council and that his salary would be automatically be affected and that implementation of the reduction of salary should be effected from the 1st June 2007.

[22] The Applicant’s attorney wrote another letter dated 13 June 2007 to the Speaker and the Municipal Manager, demanding the reasons for his removal from the executive council. He also expressed his concern about the reduction of his salary consequent to his being demoted to an ordinary member of Council.

[23] On the 19 June 2007 the Municipal Manager wrote a letter to Applicant’s attorneys informing them that Applicant was removed from the executive council

in terms of section 53 (1) of the Municipal Structures Act.

Points in limine

[24] The Respondents took the following preliminary points:

“FIRST POINT IN LIMINE

I am advised, and accept such advise, that the Notice of Set Down dated the 22nd Day of FEBRUARY 2008 is fatally flawed in that it does not comply with Rule 6 (5) (b) which states that ‘….the application will be set down for hearing on a stated day, not being less than 10 days after service on the said respondent of the said notice’.

That the Applicant’s application is further fatally flawed in that it does not comply with Rule 6 (5) © which states that ‘…. On or before the day mentioned for that purpose in such notice’. The Rule requires that the Applicant must provide a day and date on the original notice of motion.

Further, that the Applicant was advised in writing by my attorneys of record that the notice of motion is both defective and fatally flawed. A copy of such letter is annexed hereto as Annexure ‘A’.

The Applicant brought this application under case 2317/07 while aware that there is an Appeal pending in this Honourable Court on the same set of facts.

Further, that the Applicant having realized that there are two matters in the same court on the same set of facts, conveniently withdrew the other matter. Herewith annexed a copy of the notice of withdrawal as Annexure ‘B’.

Paragraphs 2, 3 and 4 of the notice of motion are orders and not prayers for relief as is required by the Rules of the Honourable Court.

On page 3 at the unnumbered paragraph two of the notice of motion the Applicant refers to ‘within 10 days after the Registrar have made available the record of proceedings to the applicant’. This paragraph is completely alien to these proceedings.

SECOND POINT IN LIMINE

The Applicant has cited the Speaker and the Municipal Manager as the First and Second Respondents on behalf of the Greater Taung Local Municipality. The two Respondent have been cited in their representative capacity. The Greaater Taung Local Municipality is the principal Respondent but has not been cited by the Applicant.

Further, that the First and Second Respondent cannot be cited in their official capacity without citing the Greater Taung Local

Municipality.

The Applicant has cited the United Christian Democratic Party as the Third Respondent and the only political party, omitting other political parties that have interest in the matter, specifically the African National Congress, the majority party in the Greater Taung Local Municipalilty. The failure of proper joinder by the Applicant is material defect and makes this application improper and not complaint with correct citation and/or joinder. Accordingly, the application in its current form must be set aside until the defect of the joinder is remedied by the Applicant. The attorneys of record for the Applicant were advised on the defective application by the attorneys of record for the First and Second Respondent, herein annexed as Annexure ‘A’. Further, besides the advise above, the attorneys of record for the Applicant failed and in fact refused to remedy any defects in the application.

I humbly submit that this application be dismissed with costs determined on attorney-client scale.

Alternatively, the application be dismissed with costs determined party and party scale.

Further and/or alternative relief.”

[25] I do not wish to deal with the points raised under the first point in limine since the Respondents proceeded to file the answering affidavits on the merits as per agreement between the two parties, albeit not admitted by the Court, even though they alleged that the step taken by the Applicant was irregular.

[26] With regard to failure to cite the Municipality as a party to the application, such non-joinder does not prejudice the Applicant in any way. Rule 53 (1) of the Uniform Rules prescribes that where a party brings proceedings under review of amongst others, any tribunal or board or officer performing administrative functions, the notice of motion shall be directed to the officer concerned to dispatch the record of proceedings of the order sought to be reviewed to the Registrar. It does not require a separate citation of the board or tribunal itself. Compare Safcor Forwarding v National Transport Commission 1982 (3) SA 654 (A) at 672 E.

[27] The point taken on the misjoinder of the UCDP does not take the Respondents’ case any further in that the UCDP has not entered

appearance in this matter and furthermore, the Municipal Council, which consists of the representatives of the ANC, are being represented by the Speaker.

The Law

[28] The main issues to be decided are:

whether the action taken by the Municipal Council to remove the Applicant as a member of its executive council is an administrative action as defined in the Promotion of Administrative Justice No 3 of 2000 (PAJA); and

whether Applicant was entitled to a fair hearing prior to his removal as a member of the executive council.

[29] Section 53 (1) of the Municipal Structures Act No 117 of 1998 (“Municipal Structures Act”) provides that:

“A municipal council may, by resolution remove from office one or more or all the members of its executive committee. Prior notice of an intention to move a motion for the removal of members must be given.”

[30] A municipal council referred to in section 157 of the Constitution is an organ of state which exercises power in terms of the Constitution or a provincial constitution. An “organ of State” in terms of section 239 of the Constitution of South Africa Act No 108 of 1996 (“the Constitution”), means î º

“(a) any department of state or administration in the national, provincial or local sphere of government; or

any other functionary or institution î º

exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

exercising a public power or performing a public function in terms of any legislation, but does not include a court of a judicial officer;”

See Mittalsteel South Africa Ltd v Hlatshwayo 2007 (1) SA 66 (SCA).

[31] Section 1 of the Municipal Systems Act No 32 of 2000 (“Municipal Systems Act”) prescribes that, “executive authority”, in relation to municipality, means the municipality’s executive authority envisaged in section 156 of the Constitution, read with section 11 of this Act. The powers listed in section 156 of the Constitution pertain to functional areas of the municipal council.

[32] Section 1 (1) of PAJA defines “Administrative Action” as meaning “any decision taken, or any failure to take a decision, by î º

(a) an organ of state, when î º

exercising a power in terms of the Constitution or a provincial constitution; or

exercising a public power or performing a public function in terms of any legislation; or

……………………….

Which adversely affects the rights of any person and which has a direct, external legal effect, but does not include î º

(aa)

(bb)

the executive powers or functions of a municipal council;

………………….

[33] A Speaker, who is the chairperson of the municipal council, exercises, amongst others, the functions delegated to him or her by the municipal council in accordance with section 59 of the Municipal Systems Act. (See section 37 (b) thereof). Furthermore, in terms of section 37 (e) of the Municipal Systems Act, the Speaker “must ensure compliance in the council and council committees with the Code of Conduct set out in Schedule 1” to the Municipal Systems Act.

[34] It is evident that the Speaker in exercising his or her duty, acts as an administrator as defined in section 1 (ii) of PAJA. It is also the duty of the Speaker to ensure that the procedure prescribed in Schedule 1 to the Municipal Systems Act (Code of Conduct for Councillors) is applied and in this regard, item 4 (3) thereof, which provides that: “Proceedings for the imposition of a fine or the removal of a councillor must be conducted in accordance with a uniform standing procedure which each municipal council must adopt for the purpose of this item. The uniform standing procedure must comply with the rules of natural justice.” (Emphasis added.)

[35] In this instance, no reference is made by the Applicant in his papers to the “uniform standing procedure” adopted by the Council, but the fact that the Code of Conduct requires compliance with the rules of natural justice, means that the administrative action or decision taken by the Speaker or the Council, must be in accordance with section 33 of the Constitution and consequently section 3 of PAJA.

[36] Section 3 of PAJA provides that:

“(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.

(2) (a) A fair administrative procedure depends on the circumstances of each case.

(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4) must give a person referred to in subsection (1)î º

(a) adequate notice of the nature and purpose of the proposed administrative action;

(b) a reasonable opportunity to make representations;

(c) a clear statement of the administrative action;

(d) adequate notice of any right of review or internal appeal, where applicable; and

(e) adequate notice of the right to request reasons in terms of section 5.

(3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in his or her or its discretion, also give a person referred to in subsection (1) an opportunity toî º

(a) obtain assistance and, in serious or complex cases, legal representation;

(b) present and dispute information and arguments; and

(c) appear in person.

(4) (a) If it is reasonable and justifiable in the circumstances, an administrator may depart from any of the requirements referred to in subsection (2).

(b) In determining whether a departure as contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors, includingî º

(i) the objects of the empowering provision;

(ii) the nature and purpose of, and the need to take, the administrative action;

the likely effect of the administrative action;

the urgency of taking the administrative action or the urgency of the matter;

the need to promote an efficient administration and good governance.

(5) Where an administrator is empowering provision to follow a procedure which is fair but different from the provisions of subsection (2), the administrator may act in accordance with that different procedure.”

[37] In the present case, it is not in dispute that the decision to remove the Applicant from Council as an executive member was taken without having followed the principles of natural justice in that Applicant:

was not afforded an opportunity to make representations;

was not given a clear statement explaining the nature of misconduct or other transgression if any, which would have entitled the Council to take the drastic action of removing him as an executive member of council; and

the reasons given for his removal, namely that his removal was in terms of section 53 (1) of the Municipal Structures Act is inadequate in that it fails to give a clear statement of the reasons for the removal.

[38] The Council was aware of the fact that the rules of natural justice had to be complied with by adopting Resolution 150/2006 wherein the Speaker was mandated to first institute an investigation into allegation levelled against the Applicant and further that Applicant

must be afforded an opportunity to respond thereto. This was in compliance with item 13 of Schedule 1 to the Municipal Systems Act.

[39] The Speaker purported to conduct the investigations at the meeting of the 15th January 2007 referred to above. It is not clear as to whether that was the correct procedure to follow. The Applicant indicated his disquiet

about the procedure followed and the reasons for his failure to cooperate with the Speaker in that regard. I do not wish to pronounce on this issue since I have not been called upon to decide thereon.

[40] I am accordingly of the view that the decision to remove Applicant as a member of the executive council, has materially and adversely

affected the rights of Applicant in that his remuneration was drastically reduced by approximately R19 000-00 per month. An administrative action which has such an effect on a person must be procedurally fair as contemplated in section 3 (1) of PAJA. The Council and the Speaker were exercising an administrative action, and thus had a duty to afford the Applicant a hearing before they could take action in that regard.

Remedies

[41] Section 7 (1) of PAJA prescribes that where an application for the review of administrative action is instituted in terms of section 6 (1) of PAJA, it behooves the Applicant to exhaust the internal remedies put in place:

Section 7 (2) provides that:

“(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted.

(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act.

A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the

obligation to exhaust any internal remedy if the court of tribunal deems it in the interest of justice.”

[42] The power to remove a councillor from office is on the MEC for Local Government and not on the Municipal Council (“the MEC”). The Municipal Council should have made a recommendation to the MEC who would then consider whether or not the Applicant should be removed from the executive council. See Item 14 (2) (e) and (4) – (6) of Schedule 1. Compare Van Wyk v Uys NO 2002 (5) SA 92 (CPD) at 99 J – 100 A – C.

Order sought

[43] Applicant seeks an order setting aside the decision of the Council to remove him as a member of its executive committee. In addition, Applicant prays for an order of re-instatement as a member of the executive council as well as payment for loss of income and other emoluments retrospectively to the 30th May 2007.

[44] I wish at this stage to remark that it is not the function of a Court of Review to usurp the functions of an administrative body, but rather to “ensure that the administrative process is conducted fairly and that decisions are taken in accordance with the law and consistently with the controlling legislation …..” per Chaskalson CJ (as he then was) in Bel Perto School Governing Body and Others v Premier, Western Cape and Another [2002] ZACC 2; 2002 (3) SA 265 (CC) at par 85 – 87 (p 292 E). See also S v Lawrence; S v Negal; S v Solberg [1997] ZACC 11; 1997 (2) SACR 540 (SA) at par [42].

[45] It will therefore not be appropriate for this Court to grant the order of re-instatement and compensation sought by the Applicant in his prayers because this Court does not have power to grant such orders on review. I find that the removal of the Applicant as a member of the executive council was not in accordance with a fair procedure.

Order

[46] I accordingly make the following order:

1. The decision of the Greater Taung Local Municipality of the 30th May 2007 in terms of which Applicant’s membership of the executive council was terminated is hereby set aside.

2. The Greater Taung Local Municipality as well as the First and Second Respondents are jointly and severally ordered to pay the costs of this application.

________________________

M M LEEUW

JUDGE OF THE HIGH COURT

APPEARANCES:

Applicant’s Attorneys: Matsimela & Heath INC

Ref: Corr009/07

1st & 2nd Respondents’ Attorneys: Hlahla Motlhamme Attorneys

Date of hearing : 25 September 2008

Date of judgement : 05 December 2008